Thinking about the Wilson remedy

As we noted yesterday, it appears that the evidence established beyond any reasonable doubt that SSG Wilson raped his step-daughter at least once. He was charged with raping her on divers occasions. The military judge found him guilty except for the words "on divers occasions" but didn't specify which was the one occasion for which she was convicting him. Applying the Walters/Seider line of cases, a four-judge majority of CAAF set aside the finding of guilty to what had originally been the divers occasions spec under the reasoning that ACCA couldn't know which specific instances SSG Wilson had been acquitted of and which specific instance he had been convicted of, thus preventing it from carrying out its appellate review function under Article 66. I'm not a fan of Walters and Seider doctrinally, but I can buy this as a fair (though debatable, see Judge Stucky's dissent) application of that case law. [If we really buy the principle underlying Walters and Seider, then it's impossible for a CCA to review any divers occasion finding of guilty where the government presents evidence of at least three acts, because the CCA can never know whether the members found the accused guilty of any particular incident or not. But CAAF -- with the exception of Judge Erdmann -- balked at taking the line of cases to its logical extreme in United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008). But that's a debate for another day.]

What I find particularly dissatisfying about Wilson is the remedy. Here's the majority opinion's complete remedy section:

"[T]he remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice." Scheurer, 62 M.J. at 112. Accordingly, we set aside the finding of guilty as to Specification 2 of Charge II and dismiss that specification with prejudice.

United States v. Wilson, __ M.J. ___, No. 09-0010, slip op. at 16 (C.A.A.F. June 18, 2009).

First, this is a correct application of CAAF's own case law and is thus supported by the doctrine of stare decisis. But stare decisis doesn't operate as a straight jacket when a court is applying its own precedent. CAAF could depart from Scheurer on this point if it wants to. And for the reasons I'll discuss below, it should want to. Perhaps Army GAD will file a petition for reconsideration to give CAAF an opportunity to decide whether it wants to.

The original Walters case was tried before members. See 58 M.J. 391, 392 (C.A.A.F. 2003). In a members case, there's no practical way to send the case back to the members for clarification as to the basis for the verdict. So CAAF's remedy in Walters -- setting aside the finding of guilty and dismissing the affected charge -- made sense. Seider was also a members case, see 60 M.J. 36, 36 (C.A.A.F. 2004), so the remedy of setting aside the finding of guilty and dismissing the affected specification made sense there as well. Augspurger? Also a members case. See 61 M.J. 189, 190 (C.A.A.F. 2005).

So what about Scheurer, which the Wilson majority quoted? Scheurer was a judge-alone case. See 62 M.J. 100, 103-04 (C.A.A.F. 2005). Here's Scheurer's entire analysis of the proper remedy for the Walters/Seider violation in that case:

Because double jeopardy principles would bar any rehearing on incidents of which Appellant was found not guilty, and because ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction, the remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice. See 58 M.J. at 397; see also United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004). Accordingly, we set aside the finding of guilty to specification 3 of the original Charge and dismiss that specification with prejudice.

62 M.J. at 112.

It's probably true that in members cases like Walters, Seider, and Augspurger,"ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction." But that isn't as apparent in judge-alone cases like Scheurer and Wilson. I don't know whether Judge Wright remains in a judicial billet, but let's assume that she does. Why can't the case be remanded to her to clarify the basis for the conviction? R.C.M. 1102 would appear to provide a vehicle for doing precisely that. So there's a potential alternative remedy. But what if Judge Wright is no longer in a judicial billet? Then things get a little more tricky. Military Rule of Evidence 509 may preclude accepting evidence from former-Judge Wright, such as an affidavit, explaining the basis for her conviction. A case is currently pending before CAAF -- United States v. Matthews, No. 08-0613/AR -- that may clarify the answer to that question. The issue in Matthews is: "WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DuBAY HEARING AS TO HIS DELIBERATIVE PROCESS." The case was orally argued on 14 April, so while CAAF's judges probably know how it's going to come out, we might not see it for a while.

The answer to whether Military Rule of Evidence 509 would bar evidence from a former judge as to the basis of the findings of guilty doesn't matter if Judge Wright remains on the bench. And if she is no longer on the bench, the 10-day reconsideration window will probably close before we receive more guidance about the permissibility of obtaining an affidavit from her through a decision in Matthews. I hope that Army GAD files a petition for reconsideration to at least give CAAF an opportunity to consider whether, in a judge-alone case, there's an alternative remedy for a Walters/Seider violation short of setting aside a finding of guilty to an offense that's been proven beyond any reasonable doubt and dismissing the affected charge and/or specification.

New CA Mulls Over Chessani Case

As the North County Times reports, here, the Commandant of the Marine Corps has assigned Lt. Gen. George Flynn, Deputy Commandant for Combat Development and Integration, HQMC and Commanding General of the Marine Corps Combat Development Command as the new CA in the LtCol Chessani court martial. We'll let you know if charges follow. Our prior posts on the Chessani case are too numerous to list, start here.

h/t to Thomas Moore Law Center website, here.

Two new CAAF decisions -- and a question

For some reason my computer is refusing to access CAAF's web site. Phil Cave was kind enough to send me two opinions that CAAF issued today.

The first is United States v. Marshall, __ M.J. ___, No. 08-0779/AR (C.A.A.F. June 18, 2009). Judge Stucky wrote the opinion of the court. Judge Ryan concurred in the result. I understand that the Marshall opinion is available here.

The issue in Marshall was whether the military judge could properly convict the accused by exceptions and substitutions of escaping from a different person than was alleged in the spec to which the accused pleaded not guilty. No, rules CAAF.

After being apprehended by local authorities and then turned over to military custody, PVT Marshall walked away while he was on an outside smoke break (!) during his pretrial confinement processing.

The spec alleged that the accused escaped from the custody of CPT Kreitman. The evidence showed that CPT Kreitman didn't personally take PVT Marshall into his custody, but rather ordered one of his subordinates to take custody of PVT Marshall from civilian law enforcement authorities. The defense moved for a finding of not guilty under R.C.M. 917, but the military judge denied the motion. The military judge later convicted PVT Marshall by exceptions and substitutions of escaping from the subordinate's custody.

The majority initially rejected the argument that the issue was forfeited, relying on the defense's motion for finding of not guilty and ruling that the defense didn't need to reiterate its same arguments once the military judge found PVT Marshall guilty by exceptions and substitutions.

CAAF rejected the government's argument that the substitution of the subordinate for CPT Kreitman was a minor variance. CAAF concluded that "the substitution was material." The court explained, "The military judge convicted Appellant by exceptions and substitutions of an offense that was substantially different from that described in the specification upon which he was arraigned." The court continued, "Although the nature of the offense remained the same -- escape from custody -- by substituting SSG Fleming for CPT Kreitman as the custodian from whom Appellant escaped, the military judge changed the identity of the offense against which the accused had to defend. This denied him the opportunity to defend against the charge." Id., slip op. at 8 (internal quotation marks omitted). The court also found that PVT Marshall was prejudiced by this variance, observing that his trial strategy focused on showing that he was never in CPT Kreitman's custody.

CAAF set aside the finding of guilty to escape from custody and dismissed the charge. The court also remanded the case to ACCA for reassessment of the sentence.

Judge Ryan concurred in the result. She disagreed with the majority that the motion for finding of not guilty preserved the variance issue. She concluded that the issue was forfeited by the defense's failure to object on variance grounds, absent plain error. Finding plain error, she agreed with the majority's disposition of the case.

CAAF's other decision today was United States v. Wilson, __ M.J. ___, No. 09-0010/AR (C.A.A.F. June 18, 2009). I understand that a copy of Wilson is available here. Chief Judge Effron wrote for the majority. Judge Stucky dissented.

SSG Wilson was charged with raping his stepdaughter on divers occasions. The military judge found him guilty of rape, but excepted the "on divers occasions" language. CAAF observes that by "so doing, the military judge convicted Appellant of a single rape, while acquitting Appellant of multiple incidents of rape." Id., slip op. at 3. After a detailed recitation of the facts, CAAF added, "The military judge found Appellant guilty of Specification 2 of Charge II, excepting the words 'on divers occasions.' The military judge did not indicate on the record or through substitutions to the specification the rape incident of which she was convicting Appellant. Neither party asked for clarification as to which alleged rape incident formed the basis of the conviction." Id., slip op. at 9.

ACCA affirmed, explaining in a footnote that is was sure it could identify the incident for which the military judge convicted SSG Wilson of rape: "The victim in this case unequivocally testified that she was raped on only one occasion, and the parties accordingly shaped their closing arguments to address the only assertion of rape described by the victim. Thus, we find no ambiguity in the finding at issue." Id., slip op. at 10 (quoting unpublished ACCA opinion).

CAAF explained that during the government's case in chief, it presented evidence of two rapes. CAAF repeated its by-now familiar holding from United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), that where a divers occasions spec is changed through exceptions and substitutions to a single occasion finding of guilty, that "[i]f there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review." Id., slip op. at 12. In this case, "[b]ecause evidence of multiple incidents of rape was presented at trial, the military judge was required to indicate the single incident for which she convicted Appellant." Id., slip op. at 13. CAAF explained, "Here, the record does not contain either substituted language or a statement on the record that would identify whether the military judge convicted Appellant of rape for the bathroom incident or the bedroom incident. Without such clarification, the findings of the present case are fatally ambiguous." Id., slip op. at 13-14.

CAAF remedied the error by setting aside the finding of guilty to rape and dismissing the specification with prejudice and setting aside the sentence. CAAF authorized a rehearing on the sentence.

Judge Stucky dissented, concluding that ACCA properly affirmed the finding of guilty. He reasoned that the evidence would have permitted the military judge to conclude beyond a reasonable doubt that SSG Wilson raped his stepdaughter on only one particular occasion. That occasion must, therefore, be the basis for the finding of guilty and ACCA's affirmance.

The outcome in this case seems like an enormous windfall to SSG Wilson. There may be a very good answer to this question, but here's what I don't get. Rather than setting aside the conviction and dismissing the rape specification, why isn't the right remedy to remand the case to the military judge to clarify what incident was the basis of the conviction, thereby permitting further review by ACCA?

Judge Rogers grants Gray's habeas counsel more time

Judge Rogers issued this order today extending Ronald Gray's habeas counsel's deadline for filing their traverse until 30 September 2009. Gray v. Gray, No. 08-3289-RDR (D. Kan. June 18, 2009) (order). Judge Rogers explained: "Under circumstances which include novel habeas challenges to the imposition of a death sentence in a military proceeding, and the court's recent appointment of attorneys providing substantive legal assistance to petitioner, the court finds the 120 day extension granted herein does not constitute unwarranted delay in the court’s resolution of this capital habeas action." Id., slip op. at 1-2.

E Street Bland?

Today's Washington Post includes this architecture review of CAAF's newly renovated neighbor, the Old City Hall and new D.C. Court of Appeals courthouse. CAAF's courthouse is alluded to a couple of times in the article. Writing about a newly added square glass box on the D.C. Court of Appeals' building's E Street side -- the same side as CAAF's entrance -- Phillip Kennicott writes, "It repositions the entrance of the building from the south to the north side, where the courthouse is elegantly flanked by two lesser and later court buildings." The article also describes the building's appearance from the south: "the relatively modest [D.C. Court of Appeals] building surmounted by the massive roof of the National Building Museum . . . looks like a little Acropolis, a striking contrast to the denatured and bland civic architecture that surrounds it." Presumably Mr. Kennicott was including CAAF's courthouse -- which sits on the D.C. Court of Appeals' west side -- as one of the contrasting buildings.

Cox Commission II hearing

The link to the Cox Commission II hearing webcast seems to have died. Perhaps NIMJ will be able to restore the link or post the video to a permanent site. In the meantime, here's a quick report about yesterday's proceedings.

Five of the commission members were present: Judge Cox, Judge Wilkins, Professor Saltzburg, RADM Guter, and MG Nash. Both of the commission's reporters -- Professors Beth Hillman and Vic Hansen -- were also there.

Judge Cox began the proceedings in the most appropriate way possible -- observing a moment of silence to remember Judge Everett and Kevin Barry. After Judge Cox's introductory remarks, Phil Cave -- speaking on behalf of the Bar Association of the District of Columbia -- made the first presentation to the commission. Phil recommended augmenting the resources available to the defense in court-martial cases and a more open rulemaking process for the military justice system.

The next presentation was by Tom Sullivan -- a partner at Jenner & Block and the former U.S. Attorney for the Northern District of Illinois. Mr. Sullivan is the nation's leading expert on recording stationhouse interrogations. He spoke in favor of adopting a requirement that federal law enforcement agencies -- including the military's -- record stationhouse interrogations in serious felony cases. I was pleased to hear that he doesn't recommend an exclusionary rule in the event that such a requirement is violated. Rather, he supports an instruction advising the jury/panel that the interrogation wasn't recorded and that such a recording would have been a more accurate way to present any resulting admissions. Phil Cave has posted links to a report and an article by Mr. Sullivan here. Mr. Sullivan's 2008 American Criminal Law Review article called Recording Federal Custodial Interviews is available here. For me, Mr. Sullivan's presentation was the highlight of the day.

My presentation followed Mr. Sullivan's. I used the Navy JAG's recent reversal of the United States v. House court-martial conviction as a vehicle for exploring needed reforms in the military justice system. I recommended greater equality in the parties' access to subpoenas and litigation resources. I also advocated allowing any servicemember convicted of a contested charge or specification by a general or special court-martial to appeal that conviction to the appropriate CCA. And I advocated adoption of the JO'Cian proposal to allow waiver of appellate review as a negotiated pretrial agreement provision, which JO'C advanced in this law review article. John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008). And here are links to my written proposals concerning: (1) equalization of access to subpoenas; (2) appellate review of contested subjurisdictional cases; (3) waiver of appellate review as a negotiated pretrial agreement term; and (4) allowing an accused in a military capital court-martial to plead guilty.

A representative of SLDN then spoke, followed by two spokespeople for a veterans' group. Judge Cox then invited Theodore Essex to address the commission. Mr. Essex was the lead author of an article quite critical of the first Cox Commission report. Lieutenant Colonel Theodore Essex and Major Leslea Pickle, A Reply to the Cox Commission on the 50th Anniversary of the Uniform Code of Military Justice, 52 A.F.L. Rev 233 (2002). In his presentation, Mr. Essex advocated farming general officer misconduct cases out to DOJ and raised concerns about the waiver-of-appellate-review-as-a-negotiated-pretrial-agreement-term proposal. CAAFlog contributor Cully Stimson of the Heritage Foundation then spoke, discussing innovations from state criminal justice systems that the military may want to emulate, such as a no drop policy for domestic abuse cases instituted by the San Diego D.A.'s office and a child homicide statute that omits any malice element, such as California Penal Code § 273ab, which provides: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."

The hearing ended with reports from the commission's two reporters. Professor Vic Hansen spoke first. He cautioned that changes in one area of the military justice system could knock down dominoes that would affect other areas. He noted that some proposed reforms implicated larger philosophical issues about the role of the military judge and the role of the convening authority. He raised the issue of the extent to which staff judge advocates should supervise the prosecution function. And he questioned whether summary courts-martial should be retained or abolished.

Professor Beth Hillman closed out the hearing. Her elegant weaving of themes from the hearing and recent military justice developments would be the envy of even the Hunt of the Unicorn tapestries' creators. She noted recurring questions concerning the extent of the right of appeal within the military justice system and the powers of the system's courts. Themes of unnecessary or unwise diversions of appellate resources and equality influence whether reform is appropriate. She noted questions concerning whether military appellate courts should specify issues not raised by counsel. She also raised the issue of whether the DuBay hearing mechanism should be codified.

The entire hearing lasted only about 3-1/2 hours. For a military justice wonk, it was time well spent.

Literary reviews of CAAF's Weston opinion

I remain delighted by the writing in Judge Stucky's opinion for the court in United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009). The opinion begins:

There was something odd about the electric razor in the bathroom. Staff Sergeant (SSgt) ME, a female Marine court reporter, noticed it sitting on the wall locker shelf in the bathroom she shared with Appellant, the senior court reporter, whom she knew to be experienced with computers and surveillance equipment. SSgt ME typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong. SSgt ME took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

Judge Stucky's prose has now drawn notice from beyond military justice wonkdom.

Law.Com Legal Blog Watch has posted a piece here called "Cloak-and-Dagger Justice" about the Weston opinion, accompanied by a photo of Humphrey Bogart. The post links to this Suits & Sentences post called "Judicial noir" that also comments on Weston (and offers amusing rewrites of Marbury v. Madison, Lochner v. New York, and Bush v. Gore).

h/t Phil Cave's Court-Martial Trial Practice blog

SG waives response in Stephens

The Solicitor General has waived the United States' right to respond to the cert petition in Stephens v. United States, No. 08-1514. [DISCLAIMER: I'm petitioner's counsel of record in the case.]

New published NMCCA opinion upholding conviction under Article 134 clauses (1) and (2) as alternative to Article 134 clause (3)

NMCCA issued a published opinion today revisiting the vexsome question of the proper relationship between Article 134 clauses (1) and (2) and Article 134 clause (3). United States v. Purdy, __ M.J. ___, No. NMCCA 200700659 (N-M. Ct. Crim. App. June 17, 2009). The opinion isn't yet on NMCCA's web site, so I've posted a copy here. Senior Judge Geiser wrote the opinion of the court, in which Judge Kelly and Senior Judge Couch joined. Senior Judge Couch also wrote a separate concurring opinion.

The opinion is sketchy on the precise fact pattern giving rise to the clauses (1) and (2) versus clause (3) issue. But here's what I think happened, piecing together the pieces of the puzzle that the opinion provides and guessing at the rest. Petty Officer Purdy was charged with receiving and possessing child pornography under Article 134 clause (3) for violating 18 U.S.C. § 2252A. The accused pleaded not guilty to the specification as worded, but guilty to an LIO of violating Article 134 clauses (1) and (2). The military judge conducted the providence inquiry on that basis and ultimately accepted Petty Officer Purdy's plea and found him guilty on that basis. (If anyone is familiar with the record in this case, can you please confirm or correct that assumption about the facts?)

The court notes that the case was tried before CAAF decided United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court continues, "Having considered Medina's refinement of Article 134, UCMJ, as applied to child pornography offenses under 18 U.S.C. § 2252A, we find the appellant's argument that his plea was improvident unpersuasive." Id. NMCCA observes that in Sapp, CAAF held that "clauses 1 and 2 are not necessarily lesser included offenses of offenses alleged under clause 3, although they may be, depending on the drafting of the specification." Id., slip op. at 4 (quoting Medina, 66 M.J. at 26). NMCCA observes that Medina, while preferring a "rigid 'elements test' over the 'implicit connection' referenced in" United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), nevertheless "seemingly left the door open for the possibility of clauses 1 or 2 to serve as lesser included offenses of clause 3 under unspecified circumstances." Id., slip op. at 4 (footnote omitted).

But in Purdy, NMCCA sidesteps the question of "whether the appellant's conduct and the wording of the specification constitute a lesser-included offense under the facts and circumstances of this case." Id. NMCCA opines that the "gravamen of Medina is the protection of the appellant's right to a knowing and voluntary plea. Even assuming, arguendo, that the offense to which the appellant pled guilty was erroneously referred to as a lesser included offense, the ultimate issue under Medina is whether the appellant had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet." Id. NMCCA holds that in this case, the accused had such fair notice.

NMCCA observes that under Medina, "it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a 'disorder or neglect' under clause 1, conduct proscribed under clause 2, or all three." Id., slip op. at 5 (quoting Medina, 66 M.J. at 26). NMCCA continues, "This can be accomplished either on the charge sheet or through the military judge during the plea inquiry." Id. (citing Medina, 66 M.J. at 27).

NMCCA then holds that in this case, "we are satisfied that the appellant's plea to clauses 1 and 2, as distinct from the charged clause 3 offense, was knowing and voluntary." Id. NMCCA observes that "the appellant voluntarily entered into a stipulation of fact in which he admitted that his conduct was both prejudicial to good order and discipline and service discrediting." Id. "Second, the appellant entered into a pretrial agreement in which he agreed to plead not guilty to the charged clause 3 offense, but instead plead guilty to offenses under clauses 1 and 2 of Article 134, UCMJ." Id. "Third, in expressly indicating that the appellant was pleading guilty to an offense other than that which appeared on the charge sheet, the military judge sufficiently explained the different theories of liability under each clause to include the fact that clauses 1 and 2 carry the additional elements of prejudice to good order and discipline and conduct of a nature to bring discredit to the service." Id.

NMCCA concludes that the "persistent references" in the record "to clauses 1 and 2 as 'lesser included offenses' of the charged clause 3 specification" do not "constitute a substantial basis in law or fact for questioning the guilty plea." Id., slip op. at 5-6.

While concurring in the majority opinion, Senior Judge Couch wrote separately to emphasize that a violation of clauses (1) and (2) of Article 134 shouldn't be considered an LIO of a violation of Article 134 clause 3 because clauses (1) and (2) each contains an element that isn't present in clause (3).

BREAKING NEWS: Supremes call for response in Rodriguez v. United States

The Supremes have called for a response from the SG to the cert petition in Rodriguez v. United States, No. 08-1465. (Yes, that Rodriguez.)